Our View: It's much too early to tell how influential 'Bostic' will be
When we think of contagions, we generally think of diseases and the symptoms by which they manifest themselves, the methods by which they spread, and the policies and procedures (such as quarantine and vaccination) used to contain them.
But ideas can be contagious, too – some healthy, some unhealthy. The spread of bad ideas is to be resisted, the spread of good ideas encouraged.
This past July, the Texas Supreme Court affirmed an earlier appeals court ruling and thereby helped promulgate a very good idea: that a defendant should not be held liable for a disease attributed to asbestos exposure unless the plaintiff can demonstrate that the exposure was substantial enough to cause the disease and that the defendant was the one responsible for the exposure.
Specifically, the Court held that “proof of ‘any exposure’ to a defendant’s product will not suffice,” that “the dose must be quantified,” that “the plaintiff must establish that the defendant’s product was a substantial factor in causing the plaintiff’s disease,” and that, “in the absence of direct evidence of causation, the plaintiff must prove with scientifically reliable expert testimony that the plaintiff’s exposure to the defendant’s product more than doubled the plaintiff’s risk of contracting the disease.”
Will this good idea spread to other jurisdictions, as it should? Attorneys discussing the Bostic decision at the HarrisMartin Midwest Asbestos Litigation Conference in St. Louis last month didn't think so.
“Absolutely not happening” was how one attorney responded, when asked if Bostic would gain traction outside of Texas.
It would be a shame if he's right about the idea's lack of contagiousness. Still, it's only been three months since the decision was handed down, and even the best ideas rarely gain acceptance rapidly. It'll be interesting to see if it is still being dismissed as inconsequential a year from now.
We predict that Bostic will catch on in time and some day set the standard for all asbestos jurisdictions.